2025:UHC:10735-DB 1 HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 165 of 2024 02 December, 2025 Parul and another …………Appellants Versus Naveen Kumar ……….Respondent ---------------------------------------------------------------------- Presence:- Mr. Shivam Sharma, learned counsel for the appellants through Video Conferencing. Despite sufficient service, none has put in appearance on behalf of respondent. ---------------------------------------------------------------------- Coram: Hon'ble Ravindra Maithani, J. Hon'ble Alok Mahra, J. Hon'ble Ravindra Maithani, J. (Oral) The instant appeal is preferred against the judgment and decree dated 01.08.2024, passed by the Principal Judge, Family Court, Dehradun, in Original Case No. 824 of 2023, Smt. Parul and Another vs. Shri Naveen, whereby the petition filed by the appellant under Section 13(1)(i-a) and Section 26 of the Hindu Marriage Act, 1955 (“the Act”), seeking a decree of divorce and custody/child- related reliefs, has been dismissed (“the case”). 2. The office report indicates that notice was issued to the respondent on 18.02.2025, which was duly served upon him personally. The service report reflects that the respondent received the notice on 19.03.2025, but despite service, he failed to enter appearance. Consequently, on 2025:UHC:10735-DB 2 21.07.2025, a Coordinate Bench of this Court directed that the appeal shall proceed ex parte against the respondent. 3. Heard learned counsel for the petitioner and perused the record. 4. The case is based on an application filed under Section 13(1)(i-a) and 26 of the Act seeking divorce on the following grounds:- The marriage of the appellant and respondent was solemnized on 16.05.2010 but within one year of marriage she was subjected to harassment in connection with unlawful demands for money and a car; that the respondent is habituated to excessive consumption of liquor; that he sold her jewellery and consistently subjected her to mental and physical cruelty; that he would beat and verbally abuse her. It is further alleged that the parties were blessed with a baby girl on 14.04.2018, who is presently studying in school, and that after the birth of the child the harassment intensified, including taunts for not giving birth to a male child and renewed demands for dowry. She alleges that she was beaten and subjected to various acts of cruelty. On these and other related allegations, the petition for divorce was instituted. 2025:UHC:10735-DB 3 5. In the case before the court below, notices were issued to the respondent, however, despite due service, respondent did not appear. Accordingly, by order dated 28.02.2024, the court proceeded ex parte against him. 6. In evidence, the petitioner filed her own affidavit reiterating the version given in her petition. She also adduced certain documents with regard to the school fees of their daughter as well as the photographs of the marriage, birth certificate, etc. However, the court below, declined to accept the case of the appellant on the premise that although the appellant had reiterated her allegations in her deposition, but, she had not produced any authentic/cogent evidence in support of her evidence to substantiate her assertions so as to establish that the respondent had subjected her to cruelty. 6. Learned counsel for the appellant would submit that the appellant has proved her case by adducing her own evidence. Her affidavit in examination- in-chief remains uncontroverted, as the respondent neither appeared nor chose to contest the proceedings. The appellant has not been cross-examined, therefore, the on-oath statement given by the appellant in terms of her affidavit submitted as in examination-in-chief remains uncontroverted and the Court had no reason to disbelief it. He would further submit that, in fact, in some 2025:UHC:10735-DB 4 proceedings, the appellant had admitted that respondent would give up drinking and would properly maintain the appellant. 7. The term “cruelty” has not been defined in the Act; however, it has been interpreted in umpteen judgments, where the Hon’ble Supreme Court, in the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Court illustratively given a list of actions, which may be termed as ‘cruelty’. The Court observed that acute mental pain, agony and suffering, which render it impossible for the parties to live together, would fall within the ambit of mental cruelty. 8. Undoubtedly, mental cruelty is a matter concerning the state of mind, which may only be inferred by the actions, behaviour and deeds of the parties. In the present case, the appellant has not confined her allegations merely to mental cruelty but has also specifically attributed several incidents of physical abuse. She has categorically stated in her pleadings and in her deposition, that on 06.04.2022, she was forcibly expelled by the respondent from her matrimonial home. 9. In her affidavit filed in examination-in-chief, the appellant has reiterated her earlier version and has deposed on oath that she was consistently harassed, beaten, and subjected to torture by the respondent, who 2025:UHC:10735-DB 5 was habituated to excessive consumption of liquor and had even sold her jewellery. The statements made by the appellant on oath remain uncontroverted, as the respondent has not appeared in the proceedings to rebut her testimony. 10. In view of the foregoing discussion, we are of the considered opinion that the court below had no justification to disbelieve the uncontroverted and consistent deposition of the appellant. Once the appellant’s testimony, duly supported by the material placed on record, remained uncontroverted, the petition ought to have been allowed. 11. Accordingly, the judgment and decree dated 01.08.2024 passed by the Principal Judge, Family Court, Dehradun, in Original Case No. 824 of 2023, Smt. Parul and Another vs. Shri Naveen is hereby set aside. The appeal is allowed. A decree of divorce is granted in favour of the appellant. The marriage solemnized on 16.05.2010 between the appellant and respondent is hereby dissolved. 12. There shall be no order as to costs. (Alok Mahra, J.) (Ravindra Maithani, J.) Mamta